ORDER : Manoj Kumar Gupta, J. 1. Heard Sri Vivek Ratan on behalf of the petitioner and Sri Tirath Raj Gupta and Sri Akash sharma Advocates on behalf of respondent no. 3. 2. The instant petition is directed against the award dated 17.4.2012 published on 15.6.2012 in I.D. Case No. 30 of 2009 by Presiding Officer, Central Government Tribunal-cum-Labour Court, Kanpur holding that respondent no. 3 was illegally retrenched from service of the Bank and directing his reinstatement with 50% back wages. The petitioner has also challenged the order dated 12.03.2013, whereby the recall application of the petitioner Bank was rejected. 3. In brief, the facts giving rise to the instant petition are that the petitioner is a nationalized bank, against which respondent no. 3 raised a dispute regarding illegal termination of his service as a Class IV employee w.e.f. 1.08.2004. The order of Reference is as follows:- "Whether the action of the management of Union Bank of India i.e. Assistant General Manager, Union Bank of India, Anazmandi Vrindaban Branch Mathura in terminating Sri Jagan Prasad Agrawal (workman) from the service of Union Bank of India Anazmandi Vrindaban Branch Mathura with effect from 01.08.04 is legal and justified? What relief the workman concerned is entitled to?" 4. Respondent no. 3 claimed that he was appointed as a Class IV employee by the petitioner Bank at its Branch at Anazmandi, Vrindaban, Mathura on 3.04.2001. He attended his duties regularly. Abruptly, his service was terminated on 1.08.2004 without assigning any reason. The petitioner Bank in its written statement disputed that respondent no. 3 was ever employed in any capacity by the bank. It was specific case of the bank that there was no relationship of master and servant between the parties. It was also specifically pleaded that the petitioner Bank being a public sector organization is governed by rules and regulations in matters of recruitment of employees. There is a prescribed recruitment procedure for recruitment of employees. The petitioner never underwent any such procedure nor he was ever appointed by the bank, as claimed by him. The petitioner Bank claimed that in fact, respondent no. 3 made an offer on 3.04.2001 to provide generator facility to the bank on rental basis. The said offer was accepted by the bank and he was permitted to install generator at the Branch in question. The petitioner Bank claimed that in fact, respondent no. 3 made an offer on 3.04.2001 to provide generator facility to the bank on rental basis. The said offer was accepted by the bank and he was permitted to install generator at the Branch in question. A certain sum was regularly credited by the bank to his saving bank account no. S-01765 as charges for hiring generator services from respondent no. 3. In the year 2004, the bank stopped availing generator facility from respondent no. 3 after settling all his bills. It was claimed that since there was a serious dispute that there was any relationship of employer and employee between the parties, consequently, the Reference order assuming that respondent no. 3 was workman, is bad in law. The third respondent filed his statement in rejoinder in which he reiterated the case set up in his original claim petition. Respondent no. 3, in support of his case, filed an affidavit claiming that he was engaged by the bank on 3.04.2001 and worked till 2004. In the beginning, he was paid Rs. 30/- per day which was later enhanced to Rs. 40/-. He was paid through vouchers. The bank utilized his service as a water man and sometimes also assigned other duties to him. He further stated that since the amount received by him from the bank towards wages was not sufficient for his livelihood, therefore, he was also providing generator service to the bank on rental basis but it does not mean that there was no relationship of employer and employee between the parties. 5. The Tribunal, after going through the evidence filed by the parties, directed for reinstatement of respondent no. 3 with 50% back wages. 6. Sri Vivek Ratan, learned counsel for the petitioner has made the following submissions:- (a) The Tribunal has not recorded any categorical finding regarding respondent no. 3 being appointed as an employee by the petitioner Bank or regarding existence of relationship of employee and employer between the parties. (b) There is no finding that respondent no. 3 had continuously worked for 240 days in the year preceding his termination on 1.08.2004 and consequently, it cannot be held that there was any illegal retrenchment. (c) The petitioner Bank filed two documents to prove that respondent no. 3 was in fact offering generator facility to the bank and was not its employee. 3 had continuously worked for 240 days in the year preceding his termination on 1.08.2004 and consequently, it cannot be held that there was any illegal retrenchment. (c) The petitioner Bank filed two documents to prove that respondent no. 3 was in fact offering generator facility to the bank and was not its employee. These documents were held to be inadmissible on the ground that these are photo copies and thus, not admissible in evidence. On the other hand, documentary evidence filed by respondent no. 3, which were also photo copies had been relied upon in holding that he was in employment of the petitioner Bank. The Tribunal has thus adopted a double standard. 7. Per contra, Sri Tirath Raj Gupta and Sri Akash Sharma, learned counsel, who have made submissions on behalf respondent no. 3, contended that the Tribunal has recorded specific finding regarding existence of employer and employee relationship between the parties; that the Tribunal has also held that the termination of the service of respondent no. 3 amounts to retrenchment without following the mandatory requirements laid down under Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act'); that even before this Court, it is admitted by the bank in paragraph 20 that on rare occasions when there was shortage of permanent staff, the bank used to take odd jobs from respondent no. 3 and for which he was also paid in cash. In support of their submissions, they have placed reliance on a judgement of Supreme Court in 2011 (6) SCC 584 , Devender Singh Vs. Municipal Council, Sanaur. 8. I have considered the submissions advanced by learned counsel for the parties and perused the record. 9. The petitioner Bank took a specific plea in its written statement that respondent no. 3 was never engaged by the bank as its employee in any capacity at any point of time. In fact, he was offering generator services to the bank in pursuance of offer letter dated 3.4.2001. A copy of the said letter was also filed before the Tribunal. The offer letter is addressed to the Branch Manager of the Bank and it mentions that respondent no. 3 had come to know that the petitioner Bank wants to avail generator facilities. Respondent no. A copy of the said letter was also filed before the Tribunal. The offer letter is addressed to the Branch Manager of the Bank and it mentions that respondent no. 3 had come to know that the petitioner Bank wants to avail generator facilities. Respondent no. 3 has mentioned that he had experience of two years in providing such services on rental basis and he is ready to offer similar service to the bank on conditions stipulated in the said letter. The conditions inter alia, were that he will charge rent of Rs. 100 per point from the bank and that generator service will be offered from 9:00 A.M. till 9:00 P.M. The expenses for repair and fuel shall be borne by him. He shall also be responsible to carry out regular maintenance of the generator. However, the expenses in regard to electrical fixtures within bank premises shall be borne by the bank. The other document, which was filed by the bank before the Tribunal, was a complaint dated 8.06.2005 made by the Branch Manager to S.H.O., P.S. Kotwali, Vrindaban mentioning that the bank had stopped availing generator service from respondent no. 3 since 1.8.2004 and he was asked to remove his generator. He was also issued notices dated 16.10.2004 and 10.5.2005 to remove the generator from the bank premises, as it was causing obstruction, but he had not removed the same and, therefore, action be taken against him. These documents were held to be inadmissible in evidence by the Tribunal solely on the ground that they are photo copies. On the other hand, respondent no. 3 filed photo copies of different vouchers ranging between 2001 to 2002 and on basis whereof, he alleged that he was paid wages on daily basis. The Tribunal essentially relied on these vouchers as main evidence for coming to the conclusion that the third respondent was employed by the petitioner Bank and that his service was illegally terminated in violation of the conditions prescribed under Section 25-F of the Act. Undoubtedly, the Tribunal has adopted double standard in this regard. It is noteworthy that respondent no. 3 had not examined himself on oath but had only filed an affidavit in support of the claim petition. In the said affidavit, he had not made any reference to the photo copies of the vouchers that he filed in support of his case. Undoubtedly, the Tribunal has adopted double standard in this regard. It is noteworthy that respondent no. 3 had not examined himself on oath but had only filed an affidavit in support of the claim petition. In the said affidavit, he had not made any reference to the photo copies of the vouchers that he filed in support of his case. Thus, even copies of the vouchers remained unsupported by the deposition on affidavit. Apart from these vouchers, there is no other evidence on record to prove that respondent no. 3 was ever appointed by the petitioner Bank in any capacity or was paid wages on regular basis. Thus, I find considerable force in the submission of learned counsel for the petitioner that the finding recorded by the Tribunal regarding existence of relationship of employer and employee between the parties on basis of alleged vouchers is unsustainable in law. 10. The vouchers on which reliance has been placed, relate to different dates between 2001 to 2002. In the impugned award of the Tribunal, there is no finding that respondent no. 3 had worked continuously for 240 days in 12 calendar months preceding the date when he was allegedly terminated from service. For attracting Section 25-F, the workman should have been in continuous service for not less than one year. The phrase 'continuous service' has been defined under Section 25-B and whereunder the employee should have worked 240 days in a calendar year preceding the date with reference to which calculation is to be made. Since these essential findings are missing in the impugned award, therefore, on this ground also, the impugned award becomes vulnerable to attack. 11. In Devender Singh Vs. Municipal Council, Sanaur on which reliance has been placed by learned counsel for respondent no. 3, the Labour court in its award directed for reinstatement of the appellant before the Supreme Court alongwith back wages. The High Court did not find any infirmity in the award of the Labour court but still it set aside the direction given by the Labour court for reinstatement of the appellant by assuming that his initial appointment was contrary to law and it would not be in public interest to approve such an award. In the aforesaid backdrop, the Supreme Court held that the approach adopted by the High Court in dealing with the award was ex facie erroneous and contrary to law. In the aforesaid backdrop, the Supreme Court held that the approach adopted by the High Court in dealing with the award was ex facie erroneous and contrary to law. The Supreme Court held that the power of the High Court in issuing writ of certiorari under Article 226 is well defined and the reason assigned by the High Court for setting aside the direction for reinstatement was legally untenable. However, in the instant case, as discussed above, the award of the Tribunal is found to be manifestly illegal and suffering from patent illegality, therefore, in my considered opinion, the judgement cited by learned counsel for respondent no. 3 will not come to his rescue. 12. Now I proceed to deal with the last submission of learned counsel for the respondent that the Bank itself admits in paragraph 20 of the writ petition that the respondent was engaged by it as a stop gap arrangement and thus, it cannot claim that there was no relationship of employer and employee between the parties. Paragraph 20 of the writ petition is extracted below:- "20. That it seems that Sri Jagan Prasad Agrawal, while providing 'Generator Facility' used to loiter/hang around the branch premises and got on friendly terms with the Bank's staff and the customers also. It is stated that he was never engaged/appointed as an employee of the bank. There was no 'employer-employee' relationship between the bank and Sri Jagan Prasad Agrawal. The petitioner Bank also did not have any control or supervision over the manner in which he operated or serviced his own Generator. He was not even required to be physically present. That on very rare occasions, when the permanent sub-staff employee of the bank Sri Bhagwan Das - Daftari/Peon happened to be absent, Sri Jagan Prasad Agrawal used to do odd jobs for which he was paid cash immediately. At the most it can be stated that on these rare occasions he was being engaged purely on stop-gap arrangement. It is further stated that a person can be appointed only in a sanctioned post and that too by an Authority competent to recruit and certainly not by the Branch Manager. At the most it can be stated that on these rare occasions he was being engaged purely on stop-gap arrangement. It is further stated that a person can be appointed only in a sanctioned post and that too by an Authority competent to recruit and certainly not by the Branch Manager. As stated above, Sri Jagan Prasad Agrawal was a contractor and a 'Generator' owner, providing 'Generator Facility' to the Bank and such Generator providers/owners are not employees of the petitioner bank nor do they attain the status of an employee on providing a generator to the Bank." 13. The assertions made in the said paragraph, in my opinion, are not sufficient to establish the relationship of employer and employee between the parties. The specific case of the Bank was that the petitioner was providing generator facility to the Bank and on rare occasions, some odd jobs were taken from him, for which he was also paid. The respondent has failed to prove that the said stop gap arrangement was implemented in any 12 calendar months on a continuous basis so as to attract Section 25-F of the Act. Thus, the submission made in this regard is also untenable. 14. In consequence and as a result of discussion made above, the award dated 17.4.2012 published on 15.6.2012 in I.D. Case No. 30 of 2009 is quashed. The matter is remitted back to the Tribunal for deciding the dispute afresh, having regard to the observations made above. 15. At this stage, counsel for both the parties submitted that the parties be permitted to lead fresh evidence. 16. Accordingly, both the parties are granted permission to lead fresh evidence before the Tribunal. 17. The petition stands allowed to the extent indicated above.